Meera Nair

An ill-fitting solution

In Posts on August 28, 2010 at 3:26 pm

The furor over the inclusion of education to permissible categories of fair dealing continues. Several writers’ groups in Canada have issued a call to the Federal Government for legislative guidance in terms of fair dealing and its application in educational settings. Clarity is the desired outcome.

On the surface, clarity seems like a good idea. But this must be placed in terms of the situation at hand – fair dealing. If one considers the role that fair dealing plays in the system of copyright, it should become evident that clarity will only be achieved by reducing the viability of fair dealing.

Fair dealing operates in aid of creative effort and thus fair dealing is necessarily as indeterminate as creativity itself. Guidance is important, which was provided by the Supreme Court in 2004 through CCH Canadian. That guidance indicates that decisions of fair dealing must include consideration of commercial impact. This is not a theoretical exercise – our courts have already engaged in this kind of deliberation.

It may be helpful to remember that the United States grappled with similar concerns – Canada is not trying anything novel. William Patry’s work is invaluable; as I wrote before, the U.S. considered what degree of detail for fair use should be coded into the law. At that time, in response to criticism of fair use’s imprecision, came these remarks:

… the doctrine of fair use is reasonably definite. It is equally as definite as many legal criteria we employ … from day to day. There is no mathematical formula, for example, by which to determine what constitutes negligence, or by which to determine what a reasonably prudent man would do in a given circumstance, but courts and lawyers apply the principle of these legal doctrines all the time. … I think that our difficulties in this area do not stem from the absence of a statutory rule, but from an ignorance of the jurisprudence. A greater knowledge about the doctrine of fair use would allay many misconceptions… (John Schulmann quoted in Patry, p.262).

Unfortunately, greater knowledge is hampered by misinformation. An inaccurate editorial surfaced this week at the Toronto Star. It decries the inclusion of education as a permissible category of fair dealing and offers up the foreboding (and baseless) scenario that a Canadian schoolboard could make use of a single book for all its students. The intentions of the editorial seem noble, i.e. concern over the well-being of Canadian writers. However, that is a greater problem and not one well-served through the blanket regime of copyright.

Whatever proceeds are obtained through copyright licensing, they must be directed to all copyright holders – Canadian or otherwise. This is known as national treatment and is an international requirement. In terms of our current law, Section 5(1) of the Copyright Act describes the conditions for subsistence of copyright:

5(1) Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met:
(a) in the case of any work, whether published or unpublished, including a cinematographic work, the author was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in, a treaty country;

Treaty countries include those who are party to the Berne Convention, a UCC country, or are a WTO member. While those countries will reciprocate and afford copyright protection to Canadians, it will only be to the level that is provided to their own nationals. And this invites comparison: do other programs offer comparable returns to what is collected in Canada? Which leads to further speculation: what does the trade imbalance look like? How much Canadian material is used outside of Canada, compared to the amount of foreign material used inside Canada?

However, for the sake of argument, let’s assume that all copyright proceeds are dedicated entirely to Canadian copyright holders. This still does not ensure that the funds will end up in the hands of the originating author. The contractual terms between authors and publishers will control the division of royalties. From the anecdotal evidence I have heard, contracts are not uniformly good contracts. (Although, I would appreciate hearing from writers themselves …)

If the objective is to serve Canadian writers, with a policy measure underwritten by Canadians en masse, copyright is not the appropriate instrument to use. Canadian writers would do far better with a program initiative that can be targeted to their needs.

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